9th Circuit Digital Millennium Copyright Act decision creates split with Federal Circuit on circumventing access controls

In a long, comprehensive opinion, the Ninth Circuit (among other rulings) created a circuit split by disagreeing with the Federal Circuit about the elements of violations of the Digital Millennium Copyright Act, 17 U.S.C. §§ 1201(a) & (b).

In MDY Industries, LLC v. Blizzard Entertainment, Inc., No. 09-15932 (9th Cir. Dec. 14, 2010), the Ninth Circuit addressed a dispute between the creator of the popular on-line game “World of Warcraft” and a manufacturer of a software program that automatically plays the game for users to help them progress through the game’s levels. In a nutshell, the Ninth Circuit held that §§ 1201(a)(1) & (2) created a brand new “copyright”—the right to prevent circumvention of measures designed to prevent or control access to a copyrighted work. The court held that § 1201(b), in contrast, prohibited trafficking in devices that circumvent measures that prevent traditional types of copyright infringement, such as copying, displaying, or performing a work.

The Ninth Circuit’s reading of § 1201(a) creates a circuit split with the Federal Circuit. The Federal Circuit had previously required § 1201(a) claimants to prove an additional element: that the circumventing technology infringes or facilitates the infringement of a copyright (i.e., an “infringement nexus requirement”). See Chamberlain Group, Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1203 (Fed. Cir. 2004). The Ninth Circuit believed that there was no textual support for requiring an “infringement nexus” and that the legislative history confirmed that no such nexus was required.

The circuit split may induce the Supreme Court to grant cert. if the decision is challenged.